1994 PLP 43 (CLC)

Date of hearing: 13th July, 1993. The facts giving rise to this appeal by the landlady are that the appellant landlady had filed the Rent Case bearing No. RA. 456 of 1980 against the present respondent seeking his ejectment on the ground of personal requirement. Her case is that house No.B/1004, Advani Lane Hyderabad was owned by Messrs Muhammad Sharif, Rafiq Ahmad, Anwar Ahmed, Mst. Khushnodi and the present appellant, who is the mother of the aforesaid co sharers, jointly. All the other co‑sharers have subsequently gifted away their shares to the present appellant. The respondent is a tenant in the said house at monthly rent of Rs.425 per month. The present appellant after having received the aforementioned gift of the co‑sharers in the said house had sent such notice to the respondent under section 18 of the Sindh Rented Premises Ordinance, 1979 and in consequence of such notice the respondent had sent the rent which was received by the landlady. However, the landlady requires the said premises for her personal bona fide use as well as the use of her son Rafiq Ahmed, who has seven minor children and no house of his own to live in. The respondent had filed his objections contesting the rent case. He has taken the plea that the ejectment application was filed by the appellant to enhance the rate of rent and that the appellant and. her sons had a number of other houses and bungalows in Hyderabad and the personal requirement claimed by them was not a bona fide one. The appellant filed her own affidavit‑in‑evidence and that of her son Rafiq Ahmed. Both of them were cross‑examined while the respondent filed his own affidavit‑in‑evidence and he was also cross‑examined. The learned Rent Controller while writing the judgment settled the following points for determination and answered both in the negative and dismissed the ejectment case, hence this appeal: (1) Whether the opponent is a defaulter in payment of rent for three months August, September and October, 1980? (2) Whether the applicant wants these premises for her personal bona fide use? (3) What should the order be? POINT NO.1: ‑‑It is very surprising that the learned Rent Controller while writing the judgment has framed this point for determination although the case of the appellant is not based on the ground of default. Thus the need for determining this point or discussing this point did not arise. POINT No.2: =‑On this point a reference may be made to the affidavit‑in‑evidence of the appellant. In paragraph 3 of her affidavit‑in evidence she has clearly stated that she requires the house in dispute for her personal use and use of her son Rafiq Ahmed. In paragraph 4 of the affidavit she has further stated that she has no place for her residence and she is residing in the house with her son Rafiq Ahmed but the accommodation is not sufficient for her requirement as she is an old and infirm lady and needs healthier accommodation, separate room for her and that also on ground floor while the house occupied by Rafiq Ahmed is on first floor. In paragraph 6 of the same affidavit she has asserted that she has no house of her own except the house in dispute. The appellant has been cross‑examined at length but it could not be extracted by other side that she owns any other house in Hyderabad or anywhere else. In cross‑examination also she has stated that she is residing in a rented house with her son Rafiq Ahmed. In the cross nation she has also stated that her son Anwar owns a bungalow in Unit No.9, Latifabad, Hyderabad. Further in the cross‑examination she has denied the suggestion that the .house No. 93/C Unit No. 7, Latifabad, wherein she is residing presently is owned by her. Rather, it will be seen from her cross examination as we'll as that of Rafiq Ahmad that the house in which they are residing is a rented house. In such circumstances, the burden would shift upon the respondent to have proved that the appellant owned the said house No.93/C or any other house but the respondent has miserably failed to do the same. Mr. Shamsuddin Memon, learned counsel for the respondent has submitted that because her address in the title of the rent case is shown to be of bungalow No.167, Unit No.9, Latifabad, therefore, it should be presumed that she is the owner of the said bungalow. This suggestion of the learned counsel is hypothetical and cannot be accepted. The burden is on the respondent to have proved through cogent evidence that the appellant owns any other house in the locality or that the appellant did not require the disputed premises for her personal use in good faith. There is no evidence from the respondent's side to even suggest that the premises where the appellant is‑ living at present is sufficient for her use. The findings of the learned Rent Controller are based on inferences and surmises. The mere fact that one of the sons of appellant owns a bungalow in Hyderabad does not debar the appellant from seeking ejectment of her own property which she requires in good faith for her personal use. In these circumstances, I accept this appeal with costs, set aside the order of the Rent Controller and allow the ejectment application filed. by the present appellant. The respondent shall hand over the vacant possession of the premises No.B/1004, Advani Lane, Hyderabad to the appellant within sixty days from the date of this judgment. H.B.T./B‑247/K Appeal accepted